MONTREAL — Quebec's highest court largely upheld a human right's tribunal's ruling requiring a comedian to pay damages to a disabled singer he mocked, while overturning the part of the decision that ordered Mike Ward to also pay $7,000 to the victim's mother.
In a split decision, two of the three judges argued Ward's comments about Jeremy Gabriel's disability compromised the young performer's right to the safeguard of his dignity and could not be justified, even in a society where freedom of expression is valued.
In 2016, Quebec Human Rights Tribunal ordered Ward to pay $35,000 in moral and punitive damages to Gabriel based on comments Ward made during shows between 2010 and 2013.
Gabriel has Treacher Collins syndrome, a congenital disorder characterized by skull and facial deformities. He became a celebrity in Quebec after he sang with Celine Dion and for the Pope.
In his act, Ward joked that he thought Gabriel's illness was terminal and people were only nice to him because he would soon die. Ward joked that after he realized the child was not going to die, he tried to drown him.
In a written decision, Justices Claudine Roy and Genevieve Cotnam noted the comments that were deemed discriminatory were those that related specifically to Gabriel's disability, including the shape of his head and his hearing aids.
"The Tribunal carefully analyzed the evidence and its conclusion that Mr. Gabriel showed a distinction, exclusion or preference, based on his disability, that has the effect of jeopardizing his right to full equality in the recognition of his right to dignity, honour and reputation is not unreasonable," they wrote.
In a statement posted to his Twitter account, Ward said he would refuse to pay the fine and planned to take his case to the Supreme Court of Canada.
He said comedy is not a crime.
"In a 'free' country, it shouldn't be up to a judge to decide what constitutes a joke on stage," he wrote. "The people in attendance laughing already answered that question."
During the appeals process, Ward's lawyer had argued that the jokes, while distasteful, were not discriminatory, and that a comedian's right to speak their minds must remain legal in a free and democratic society.
The appeals court disagreed, noting that freedom of expression has its limits, and that "comedians must nevertheless realize that artistic freedom isn't absolute and they are, like all citizens, responsible for the consequences of their actions when they exceed certain limits."
A third justice, Manon Savard, disagreed with their conclusions.
While it upheld the $35,000 in damages awarded to Gabriel, the Court of Appeal ruled that Ward should not have to pay $7,000 to the singer's mother as previously ordered.
While Gabriel's family were undoubtedly hurt by the comments, there was no evidence that his mother was directly the victim of discrimination, the court ruled.
The comedian's lawyer, Julius Grey, said he would seek leave to appeal the case to the Supreme Court.
The rejection of the mother's claims, plus the strength of the third judge's dissent, amounted to a "partial victory" despite the defeat, he said in a phone interview.
Grey said his client was willing to continue the legal battle largely in order to defend the right of comedians, and all citizens, to artistic expression.
"I think we're living in a society where freedom of expression has played second fiddle to all the other considerations, and I think it's time — I hope its time — to reinstate freedom of speech as a fundamental value, a transcendental value really," he said.
This report by The Canadian Press was first published Nov. 28, 2019.
Morgan Lowrie, The Canadian Press